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TRUSTING THE PUBLIC TRUST: APPLICATION OF THE PUBLIC TRUST DOCTRINE TO GROUNDWATER RESOURCES Jack Tuholske∗ TABLE OF CONTENTS Introduction ...................................................................................................190 I. An Overview of Groundwater Problems in the United States...............193 A. Running Low in the High Plains .....................................................193 B. A Garden in the Wilderness.............................................................195 C. Land Subsidence...............................................................................197 D. Natural Resource Extraction............................................................198 E. Bottled Water: Groundwater as a Consumer Commodity .............200 F. Saltwater Intrusion: The Sea Cometh..............................................201 G. Reduced Surface Flows ...................................................................202 H. Groundwater Depletion: A Pervasive Nationwide Problem .........203 II. A Brief Overview of Groundwater Law ................................................204 A. Common Law Applied to Groundwater .........................................205 B. Statutory Overlays............................................................................211 III. The Public Trust and Groundwater.......................................................214 A. Brief Historical Overview of the Public Trust Doctrine................214 B. New Applications of the Public Trust Doctrine .............................216 IV. Groundwater and the Public Trust Doctrine ........................................221 A. Application of the Doctrine Beyond Property-Based Navigability Distinctions Regarding Bed, Banks, and Tidelands.......221 B. Applying the Public Trust to Groundwater.....................................226 C. Likely Criticism of Applying the Public Trust Doctrine to Groundwater ...........................................................................................231 Conclusion.....................................................................................................235 ∗ The author acknowledges the exceptional contribution of Vermont Law School student and Vermont Journal of Environmental Law Senior Articles Editor, Julia Horrocks, for both conceptualizing this article, and assisting with research, writing, and editing. This article draws upon Ms. Horrocks’ excellent prior scholarship on the public trust and Vermont groundwater legislation. I also want to thank the VJEL staffers Joshua Belcher and Samantha Simmons for their insights, editing, and support for this article. 190 VERMONT JOURNAL OF ENVIRONMENTAL LAW [vol. 9 INTRODUCTION A recent New York Times story proclaimed Beneath Booming Cities, China’s Future is Drying Up, detailing a profound example of groundwater depletion that threatens to tear the fabric of Chinese society.1 China’s roiling economic expansion over the past two decades has created water shortages of enormous magnitude. China is trying to alleviate the problem with a sixty-two billion dollar trans-basin water transfer scheme to its booming North Plain—an arid, rapidly developing part of the country that has depleted its groundwater at unprecedented rates to support economic growth.2 Scientists predict that in the North China Plain, 200 million people will simply run out of groundwater in thirty years.3 The situation in China, while extreme, is not unlike groundwater extraction problems in the American Southwest. Like the North China Plain, the Southwest is arid, yet burgeons with recent population growth, and lives beyond its local water availability. The groundwater problem in the Southwest is also attacked with technological fixes. Rather than limit growth, the Southern Nevada Water Authority proposes massive groundwater pumping from hundreds of miles away to fuel its continued boom.4 Our groundwater problems are not limited to desert lands in the United States. Florida, one of the wettest states in the nation, has severe local subsidence problems due to groundwater pumping.5 Groundwater supplies for some metropolitan areas along the East Coast are threatened by saltwater invasion due to both rising seas and sinking water tables. Water bottling companies seek exclusive rights for springs, to the chagrin of local residents.6 The Ogallala Aquifer in the Great Plains, which supplies 30% of all irrigation water for the nation’s agriculture, has in some areas dropped 1. Jim Yardley, Under China’s Booming North, the Future Is Drying Up, N.Y. TIMES, Sept. 28, 2007, at A1, available at 2007 WLNR 18998401. 2. Id. The rate of growth is difficult to comprehend. The city of Shijiazhuang grew from a few farming villages in 1900, to a city of 335,000 people in 1950, to a metropolitan area today with over nine million residents. Id. 3. Id. 4. Yardley, supra note 1. The Central Arizona Project is another example of fixing groundwater by massive interbasin transfer instead of limiting growth or enacting sustainability legislation. This taxpayer-subsidized project brings Colorado River water some 300 miles to central Arizona. See Central Arizona Project, http://www.cap-az.com (addressing frequently asked questions about the Central Arizona Project). 5. U.S. GEOLOGICAL SURVEY, FS-165-00, GROUNDWATER RESOURCES FOR THE FUTURE: LAND SUBSIDENCE IN THE UNITED STATES, 1 fig.1, 3 (2000), available at http://water.usgs.gov/ogw/ pubs/fs00165/SubsidenceFS.v7.pdf. 6. See infra notes 81–93 and accompanying text. 2008] Trusting the Public Trust 191 more than 150 feet due to groundwater pumping for irrigation.7 In Montana, coal seam aquifers that have supplied domestic and stock water for generations may be pumped dry for coal bed methane development. Chicago area aquifers have dropped 900 feet. Serious looming groundwater shortages are predicted in some parts of the Great Lakes.8 California overdraws its water by one to two million acre-feet per year.9 Las Vegas refuses to cap population growth and looks to pump groundwater from rural areas; local ranchers vow to fight the water grab.10 While not as immediately severe as China’s groundwater problems, the United States faces groundwater challenges on many fronts. We are a nation dependent upon groundwater for both agriculture and domestic water supplies. Groundwater use increased from thirty-eight million acre-feet to ninety-three million acre-feet in just thirty years, from 1950 to 1980.11 Groundwater accounts for 40% of all water for irrigated agriculture, and provides about 40% of our domestic water needs.12 While the United States has locally abundant groundwater resources,13 the most rapidly growing areas, where extraction is greatest, are often the most arid parts of the country, where recharge is slow. For example, the Ogallala Aquifer, our nation’s richest groundwater source, is being depleted at a rate conservatively estimated to exceed ten times the rate of natural recharge.14 Groundwater mining is a problem that must be confronted sooner rather than later. Changes in snowfall, snow melt, temperature, and precipitation related to global climate change exacerbate groundwater recharge problems. In just two decades, dramatic changes in hydrological patterns have been documented in the Northeast and Rocky Mountain West. Mountain snow packs are diminished, spring runoff is earlier and quicker, and reservoirs 7. WILLIAM M. ALLEY ET AL., U.S. GEOLOGICAL SURVEY, CIRCULAR 1186, SUSTAINABILITY OF GROUND-WATER REOURCES 27 fig.10 (1999), available at http://pubs.usgs.gov/circ/circ1186/ pdf/circ1186.pdf. 8. See infra p. 15. 9. CAL. DEP’T OF WATER RES., DEP’T OF NATURAL RES., BULLETIN 118, CALIFORNIA’S GROUNDWATER 2 (2003), available at http://www.dpla2.water.ca.gov/publications/ groundwater/bulletin118/Bulletin118_Entire.pdf. 10. See infra note 45–51 and accompanying text. 11. JOSEPH SAX ET AL., LEGAL CONTROL OF GROUNDWATER RESOURCES 395 (4th ed. 2006). 12. Id. 13. U.S. Geological Survey (USGS) estimates that the total amount of freshwater-groundwater withdrawals in the United States in 2000 was approximately eighty-three billion gallons per day, not including independent routing. U.S. Geological Survey, Estimated Use of Water in the United States in 2000, tbl. 1, http://pubs.usgs.gov/circ/2004/circ1268/htdocs/text-total.htm (last visited Dec. 11, 2007). 14. MANJULA V. GURU & JAMES E. HORNE, KERR CENTER FOR SUSTAINABLE AGRICULTURE, THE OGALLALA AQUIFER 7–8 (2000), available at http://www.kerrcenter.com/publications/ ogallala_aquifer.pdf. 192 VERMONT JOURNAL OF ENVIRONMENTAL LAW [vol. 9 designed to capture snow melt do not fill. All of these factors increase pressure for more groundwater extraction.15 In addition, the rise in sea levels attributed to climate change has already caused saltwater to invade some East Coast aquifers.16 Confounding groundwater management are myriad disparate, often outdated laws, relics of nineteenth-century common law doctrines ill-suited for today’s problems. Yet, despite our dependence on groundwater for agriculture and municipal water, we sanction over-drafting of aquifers in many places even while climate change may substantially alter the long- term water balance. Common law groundwater doctrines and state statutory schemes for groundwater often do little to prevent groundwater mining. If we are to maintain our nation’s preeminence in agriculture and ensure quality domestic water supplies where people need them, then a fresh look at how to best approach groundwater conservation is needed.17 Part I of this Article begins
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